The History of Rome, Book II

CHAPTER II
The Tribunate of the Plebs and the Decemvirate

Material Interests

Under the new organization of the commonwealth the old burgesses had attained by legal means to the full possession of political power. Governing through the magistracy which had been reduced to be their servant, preponderating in the Senate, in sole possession of all public offices and priesthoods, armed with exclusive cognizance of things human and divine and familiar with the whole routine of political procedure, influential in the public assembly through the large number of pliant adherents attached to the several families, and, lastly, entitled to examine and to reject every decree of the community,—the patricians might have long preserved their practical power, just because they had at the right time abandoned their claim to sole legal authority. It is true that the plebeians could not but be painfully sensible of their political disabilities; but undoubtedly in the first instance the nobility had not much to fear from a purely political opposition, if it understood the art of keeping the multitude, which desired nothing but equitable administration and protection of its material interests, aloof from political strife. In fact during the first period after the expulsion of the kings we meet with various measures which were intended, or at any rate seemed to be intended, to gain the favour of the commons for the government of the nobility especially on economic grounds. The port-dues were reduced; when the price of grain was high, large quantities of corn were purchased on account of the state, and the trade in salt was made a state-monopoly, in order to supply the citizens with corn and salt at reasonable prices; lastly, the national festival was prolonged for an additional day. Of the same character was the ordinance which we have already mentioned respecting property fines,¹⁷ which was not merely intended in general to set limits to the dangerous fining-prerogative of the magistrates, but was also, in a significant manner, calculated for the especial protection of the man of small means. The magistrate was prohibited from fining the same man on the same day to an extent beyond two sheep or beyond thirty oxen, without granting leave to appeal; and the reason of these singular rates can only perhaps be found in the fact, that in the case of the man of small means possessing only a few sheep a different maximum appeared necessary from that fixed for the wealthy proprietor of herds of oxen —a considerate regard to the wealth or poverty of the person fined, from which modern legislators might take a lesson.

But these regulations were merely superficial; the main current flowed in the opposite direction. With the change in the constitution there was introduced a comprehensive revolution in the financial and economic relations of Rome, The government of the kings had probably abstained on principle from enhancing the power of capital, and had promoted as far as it could an increase in the number of farms. The new aristocratic government, again, appears to have aimed from the first at the destruction of the middle classes, particularly of the intermediate and smaller holdings of land, and at the development of a domination of landed and moneyed lords on the one hand, and of an agricultural proletariate on the other.

Rising Power of the Capitalists

The reduction of the port-dues, although upon the whole a popular measure, chiefly benefited the great merchant. But a much greater accession to the power of capital was supplied by the indirect system of finance-administration. It is difficult to say what were the remote causes that gave rise to it: but, while its origin may probably be referred to the regal period, after the introduction of the consulate the importance of the intervention of private agency must have been greatly increased, partly by the rapid succession of magistrates in Rome, partly by the extension of the financial action of the treasury to such matters as the purchase and sale of grain and salt; and thus the foundation must have been laid for that system of farming the finances, the development of which became so momentous and so pernicious for the Roman commonwealth. The state gradually put all its indirect revenues and all its more complicated payments and transactions into the hands of middlemen, who gave or received a round sum and then managed the matter for their own benefit. Of course only considerable capitalists and, as the state looked strictly to tangible security, in the main only large landholders, could enter into such engagements: and thus there grew up a class of tax-farmers and contractors, who, in the rapid growth of their wealth, in their power over the state to which they appeared to be servants, and in the absurd and sterile basis of their moneyed dominion, quite admit of comparison with the speculators on the stock exchange of the present day.

Public Land

The concentrated aspect assumed by the administration of finance showed itself first and most palpably in the treatment of the public lands, which tended almost directly to accomplish the material and moral annihilation of the middle classes. The use of the public pasture and of the state-domains generally was from its very nature a privilege of burgesses; formal law excluded the plebeian from the joint use of the common pasture. As however, apart from the conversion of the public land into private property or its assignation, Roman law knew no fixed rights of usufruct on the part of individual burgesses to be respected like those of property, it depended solely on the pleasure of the king, so long as the public land remained such, to grant and to define its joint enjoyment; and it is not to be doubted that he frequently made use of his right, or at least his power, as to this matter in favour of plebeians. But on the introduction of the republic the principle was again strictly insisted on, that the use of the common pasture belonged in law merely to the burgess of best right, or in other words to the patrician; and, though the senate still as before allowed exceptions in favour of the wealthy plebeian houses represented in it, the small plebeian landholders and the day-labourers, who stood most in need of the common pasture, had its joint enjoyment injuriously withheld from them. Moreover there had hitherto been paid for the cattle driven out on the common pasture a grazing-tax, which was moderate enough to make the right of using that pasture still be regarded as a privilege, and yet yielded no inconsiderable revenue to the public purse. The patrician quaestors were now remiss and indulgent in levying it, and gradually allowed it to fall into desuetude. Hitherto, particularly when new domains were acquired by conquest, allocations of land had been regularly arranged, in which all the poorer burgesses and —metoeci— were provided for; it was only the land which was not suitable for agriculture that was annexed to the common pasture. The ruling class did not venture wholly to give up such assignations, and still less to propose them merely in favour of the rich; but they became fewer and scantier, and were replaced by the pernicious system of occupation-that is to say, the cession of domain-lands, not in property or under formal lease for a definite term, but in special usufruct until further notice, to the first occupant and his heirs-at-law, so that the state was at any time entitled to resume them, and the occupier had to pay the tenth sheaf, or in oil and wine the fifth part of the produce, to the exchequer. This was simply the -precarium- already described¹⁸ applied to the state-domains, and may have been already in use as to the public land at an earlier period, particularly as a temporary arrangement until its assignation should be carried out. Now, however, not only did this occupation-tenure become permanent, but, as was natural, none but privileged persons or their favourites participated, and the tenth and fifth were collected with the same negligence as the grazing-money. A threefold blow was thus struck at the intermediate and smaller landholders: they were deprived of the common usufructs of burgesses; the burden of taxation was increased in consequence of the domain revenues no longer flowing regularly into the public chest; and those land-allocations were stopped, which had provided a constant outlet for the agricultural proletariate somewhat as a great and well-regulated system of emigration would do at the present day. To these evils was added the farming on a large scale, which was probably already beginning to come into vogue, dispossessing the small agrarian clients, and in their stead cultivating the estates by rural slaves; a blow, which was more difficult to avert and perhaps more pernicious than all those political usurpations put together. The burdensome and partly unfortunate wars, and the exorbitant taxes and task-works to which these gave rise, filled up the measure of calamity, so as either to deprive the possessor directly of his farm and to make him the bondsman if not the slave of his creditor-lord, or to reduce him through encumbrances practically to the condition of a temporary lessee of his creditor. The capitalists, to whom a new field was here opened of lucrative speculation unattended by trouble or risk, sometimes augmented in this way their landed property; sometimes they left to the farmer, whose person and estate the law of debt placed in their hands, nominal proprietorship and actual possession. The latter course was probably the most common as well as the most pernicious; for while utter ruin might thereby be averted from the individual, this precarious position of the farmer, dependent at all times on the mercy of his creditor—a position in which he knew nothing of property but its burdens—threatened to demoralise and politically to annihilate the whole farmer-class. The intention of the legislator, when instead of mortgaging he prescribed the immediate transfer of the property to the creditor with a view to prevent insolvency and to devolve the burdens of the state on the real holders of the soil,¹⁹ was evaded by the rigorous system of personal credit, which might be very suitable for merchants, but ruined the farmers. The free divisibility of the soil always involved the risk of an insolvent agricultural proletariate; and under such circumstances, when all burdens were increasing and all means of deliverance were foreclosed, distress and despair could not but spread with fearful rapidity among the agricultural middle class.

Relations of the Social Question to the Question between Orders

The distinction between rich and poor, which arose out of these relations, by no means coincided with that between the clans and the plebeians. If far the greater part of the patricians were wealthy landholders, opulent and considerable families were, of course, not wanting among the plebeians; and as the senate, which even then perhaps consisted in greater part of plebeians, had assumed the superintendence of the finances to the exclusion even of the patrician magistrates, it was natural that all those economic advantages, for which the political privileges of the nobility were abused, should go to the benefit of the wealthy collectively; and the pressure fell the more heavily upon the commons, since those who were the ablest and the most capable of resistance were by their admission to the senate transferred from the class of the oppressed to the ranks of the oppressors.

But this state of things prevented the political position of the aristocracy from being permanently tenable. Had it possessed the self-control to govern justly and to protect the middle class—as individual consuls from its ranks endeavoured, but from the reduced position of the magistracy were unable effectually, to do—it might have long maintained itself in sole possession of the offices of state. Had it been willing to admit the wealthy and respectable plebeians to full equality of rights—possibly by connecting the acquisition of the patriciate with admission into the senate—both might long have governed and speculated with impunity. But neither of these courses was adopted; the narrowness of mind and short- sightedness, which are the proper and inalienable privileges of all genuine patricianism, were true to their character also in Rome, and rent the powerful commonwealth asunder in useless, aimless, and inglorious strife.

Secession to the Sacred Mount

The immediate crisis however proceeded not from those who felt the disabilities of their order, but from the distress of the farmers. The rectified annals place the political revolution in the year 244, the social in the years 259 and 260; they certainly appear to have followed close upon each other, but the interval was probably longer. The strict enforcement of the law of debt—so runs the story—excited the indignation of the farmers at large. When in the year 259 the levy was called forth for a dangerous war, the men bound to serve refused to obey the command. Thereupon the consul Publius Servilius suspended for a time the application of the debtor-laws, and gave orders to liberate the persons already imprisoned for debt as well as prohibited further arrests; so that the farmers took their places in the ranks and helped to secure the victory. On their return from the field of battle the peace, which had been achieved by their exertions, brought back their prison and their chains: with merciless rigour the second consul, Appius Claudius, enforced the debtor-laws and his colleague, to whom his former soldiers appealed for aid, dared not offer opposition. It seemed as if collegiate rule had been introduced not for the protection of the people, but to facilitate breach of faith and despotism; they endured, however, what could not be changed. But when in the following year the war was renewed, the word of the consul availed no longer. It was not till Manius Valerius was nominated dictator that the farmers submitted, partly from their awe of the higher magisterial authority, partly from their confidence in his friendly feeling to the popular cause—for the Valerii were one of those old patrician clans by whom government was esteemed a privilege and an honour, not a source of gain. The victory was again with the Roman standards; but when the victors came home and the dictator submitted his proposals of reform to the senate, they were thwarted by its obstinate opposition. The army still stood in its array, as usual, before the gates of the city. When the news arrived, the long threatening storm burst forth; the -esprit de corps- and the compact military organization carried even the timid and the indifferent along with the movement. The army abandoned its general and its encampment, and under the leadership of the commanders of the legions—the military tribunes, who were at least in great part plebeians—marched in martial order into the district of Crustumeria between the Tiber and the Anio, where it occupied a hill and threatened to establish in this most fertile part of the Roman territory a new plebeian city. This secession showed in a palpable manner even to the most obstinate of the oppressors that such a civil war must end with economic ruin to themselves; and the senate gave way. The dictator negotiated an agreement; the citizens returned within the city walls; unity was outwardly restored. The people gave Manius Valerius thenceforth the name of "the great" (-maximus-)—and called the mount beyond the Anio "the sacred mount." There was something mighty and elevating in such a revolution, undertaken by the multitude itself without definite guidance under generals whom accident supplied, and accomplished without bloodshed; and with pleasure and pride the citizens recalled its memory. Its consequences were felt for many centuries: it was the origin of the tribunate of the plebs.

Plebian Tribunes and Plebian Aediles

In addition to temporary enactments, particularly for remedying the most urgent distress occasioned by debt, and for providing for a number of the rural population by the founding of various colonies, the dictator carried in constitutional form a law, which he moreover —doubtless in order to secure amnesty to the burgesses for the breach of their military oath—caused every individual member of the community to swear to, and then had it deposited in a temple under the charge and custody of two magistrates specially appointed from the plebs for the purpose, the two "house-masters" (-aediles-). This law placed by the side of the two patrician consuls two plebeian tribunes, who were to be elected by the plebeians assembled in curies. The power of the tribunes was of no avail in opposition to the military -imperium-, that is, in opposition to the authority of the dictator everywhere or to that of the consuls beyond the city; but it confronted, on a footing of independence and equality, the ordinary civil powers which the consuls exercised. There was, however, no partition of powers. The tribunes obtained the right which pertained to the consul against his fellow-consul and all the more against an inferior magistrate,²⁰ namely, the right to cancel any command issued by a magistrate, as to which the burgess whom it affected held himself aggrieved and lodged a complaint, through their protest timeously and personally interposed, and likewise of hindering or cancelling at discretion any proposal made by a magistrate to the burgesses, in other words, the right of intercession or the so-called tribunician veto.

Intercession

The power of the tribunes, therefore, primarily involved the right of putting a stop to administration and to judicial action at their pleasure, of enabling a person bound to military service to withhold himself from the levy with impunity, of preventing or cancelling the raising of an action and legal execution against the debtor, the initiation of a criminal process and the arrest of the accused while the investigation was pending, and other powers of the same sort. That this legal help might not be frustrated by the absence of the helpers, it was further ordained that the tribune should not spend a night out of the city, and that his door must stand open day and night. Moreover, it lay in the power of the tribunate of the people through a single word of a single tribune to restrain the adoption of a resolution by the community, which otherwise by virtue of its sovereign right might have without ceremony recalled the privileges conferred by it on the plebs.

But these rights would have been ineffective, if there had not belonged to the tribune of the people an instantaneously operative and irresistible power of enforcing them against him who did not regard them, and especially against the magistrate contravening them. This was conferred in such a form that the acting in opposition to the tribune when making use of his right, above all things the laying hands on his person, which at the Sacred Mount every plebeian, man by man for himself and his descendants, had sworn to protect now and in all time to come from all harm, should be a capital crime; and the exercise of this criminal justice was committed not to the magistrates of the community but to those of the plebs. The tribune might in virtue of this his judicial office call to account any burgess, especially the consul in office, have him seized if he should not voluntarily submit, place him under arrest during investigation or allow him to find bail, and then sentence him to death or to a fine. For this purpose the two plebeian aediles appointed at the same time were attached to the tribunes as their servants and assistants, primarily to effect arrest, on which account the same inviolable character was assured to them also by the collective oath of the plebeians. Moreover the aediles themselves had judicial powers like the tribunes, but only for the minor causes that might be settled by fines. If an appeal was lodged against the decision of tribune or aedile, it was addressed not to the whole body of the burgesses, with which the officials of the plebs were not entitled at all to transact business, but to the whole body of the plebeians, which in this case met by curies and finally decided by majority of votes.

This procedure certainly savoured of violence rather than of justice, especially when it was adopted against a non-plebeian, as must in fact have been ordinarily the case. It was not to be reconciled either with the letter or the spirit of the constitution that a patrician should be called to account by authorities who presided not over the body of burgesses, but over an association formed within it, and that he should be compelled to appeal, not to the burgesses, but to this very association. This was originally without question Lynch justice; but the self-help was doubtless carried into effect from early times in form of law, and was after the legal recognition of the tribunate of the plebs regarded as lawfully admissible.

In point of intention this new jurisdiction of the tribunes and the aediles, and the appellate decision of the plebeian assembly therein originating, were beyond doubt just as much bound to the laws as the jurisdiction of the consuls and quaestors and the judgment of the centuries on appeal; the legal conceptions of crime against the community²¹ and of offences against order²² were transferred from the community and its magistrates to the plebs and its champions. But these conceptions were themselves so little fixed, and their statutory definition was so difficult and indeed impossible, that the administration of justice under these categories from its very nature bore almost inevitably the stamp of arbitrariness. And now when the very idea of right had become obscured amidst the struggles of the orders, and when the legal party—leaders on both sides were furnished with a co-ordinate jurisdiction, this jurisdiction must have more and more approximated to a mere arbitrary police. It affected in particular the magistrate. Hitherto the latter according to Roman state law, so long as he was a magistrate, was amenable to no jurisdiction at all, and, although after demitting his office he might have been legally made responsible for each of his acts, the exercise of this right lay withal in the hands of the members of his own order and ultimately of the collective community, to which these likewise belonged. Now in the tribunician jurisdiction there emerged a new power, which on the one hand might interfere against the supreme magistrate even during his tenure of office, and on the other hand was wielded against the noble burgesses exclusively by the non-noble, and which was the more oppressive that neither the crime nor its punishment was formally defined by law. In reality through the co-ordinate jurisdiction of the plebs and the community the estates, limbs, and lives of the burgesses were abandoned to the arbitrary pleasure of the party assemblies.

In civil jurisdiction the plebeian institutions interfered only so far, that in the processes affecting freedom, which were so important for the plebs, the nomination of jurymen was withdrawn from the consuls, and the decisions in such cases were pronounced by the "ten-men-judges" destined specially for that purpose (-iudices-, -decemviri-, afterwards -decemviri litibus iudicandis-).

Legislation

With this co-ordinate jurisdiction there was further associated a co-ordinate initiative in legislation. The right of assembling the members and of procuring decrees on their part already pertained to the tribunes, in so far as no association at all can be conceived without such a right. But it was conferred upon them, in a marked way, by legally securing that the autonomous right of the plebs to assemble and pass resolutions should not be interfered with on the part of the magistrates of the community or, in fact, of the community itself. At all events it was the necessary preliminary to the legal recognition of the plebs generally, that the tribunes could not be hindered from having their successors elected by the assembly of the plebs and from procuring the confirmation of their criminal sentences by the same body; and this right accordingly was further specially guaranteed to them by the Icilian law (262), which threatened with severe punishment any one who should interrupt the tribune while speaking, or should bid the assembly disperse. It is evident that under such circumstances the tribune could not well be prevented from taking a vote on other proposals than the choice of his successor and the confirmation of his sentences. Such "resolves of the multitude" (-plebi scita-) were not indeed strictly valid decrees of the people; on the contrary, they were at first little more than are the resolutions of our modern public meetings; but, as the distinction between the comitia of the people and the councils of the multitude was of a formal nature rather than aught else, the validity of these resolves as autonomous determinations of the community was at once claimed at least on the part of the plebeians, and the Icilian law for instance was immediately carried in this way. Thus was the tribune of the people appointed as a shield and protection for the individual, and as leader and manager for all, provided with unlimited judicial power in criminal proceedings, that in this way he might give emphasis to his command, and lastly even pronounced to be in his person inviolable (-sacrosanctus-), inasmuch as whoever laid hands upon him or his servant was not merely regarded as incurring the vengeance of the gods, but was also among men accounted as if, after legally proven crime, deserving of death.

Relation of the Tribune to the Consul

The tribunes of the multitude (-tribuni plebis-) arose out of the military tribunes and derived from them their name; but constitutionally they had no further relation to them. On the contrary, in respect of powers the tribunes of the plebs stood on a level with the consuls. The appeal from the consul to the tribune, and the tribune's right of intercession in opposition to the consul, were, as has been already said, precisely of the same nature with the appeal from consul to consul and the intercession of the one consul in opposition to the other; and both cases were simply applications of the general principle of law that, where two equal authorities differ, the veto prevails over the command. Moreover the original number (which indeed was soon augmented), and the annual duration of the magistracy, which in the case of the tribunes changed its occupants on the 10th of December, were common to the tribunes and the consuls. They shared also the peculiar collegiate arrangement, which placed the full powers of the office in the hands of each individual consul and of each individual tribune, and, when collisions occurred within the college, did not count the votes, but gave the Nay precedence over the Yea; for which reason, when a tribune forbade, the veto of the individual was sufficient notwithstanding the opposition of his colleagues, while on the other hand, when he brought an accusation, he could be thwarted by any one of those colleagues. Both consuls and tribunes had full and co-ordinate criminal jurisdiction, although the former exercised it indirectly, and the latter directly; as the two quaestors were attached to the former, the two aediles were associated with the latter.²³ The consuls were necessarily patricians, the tribunes necessarily plebeians. The former had the ampler power, the latter the more unlimited, for the consul submitted to the prohibition and the judgment of the tribunes, but the tribune did not submit himself to the consul. Thus the tribunician power was a copy of the consular; but it was none the less a contrast to it. The power of the consuls was essentially positive, that of the tribunes essentially negative. The consuls alone were magistrates of the Roman people, not the tribunes; for the former were elected by the whole burgesses, the latter only by the plebeian association. In token of this the consul appeared in public with the apparel and retinue pertaining to state- officials; the tribunes sat on a stool instead of the "chariot seat," and lacked the official attendants, the purple border, and generally all the insignia of magistracy: even in the senate the tribune had neither presidency nor so much as a seat. Thus in this remarkable institution absolute prohibition was in the most stern and abrupt fashion opposed to absolute command; the quarrel was settled by legally recognizing and regulating the discord between rich and poor.

Political Value of the Tribunate

But what was gained by a measure which broke up the unity of the state; which subjected the magistrates to a controlling authority unsteady in its action and dependent on all the passions of the moment; which in the hour of peril might have brought the administration to a dead-lock at the bidding of any one of the opposition chiefs elevated to the rival throne; and which, by investing all the magistrates with co-ordinate jurisdiction in the administration of criminal law, as it were formally transferred that administration from the domain of law to that of politics and corrupted it for all time coming? It is true indeed that the tribunate, if it did not directly contribute to the political equalization of the orders, served as a powerful weapon in the hands of the plebeians when these soon afterwards desired admission to the offices of state. But this was not the real design of the tribunate. It was a concession wrung not from the politically privileged order, but from the rich landlords and capitalists; it was designed to ensure to the commons equitable administration of law, and to promote a more judicious administration of finance. This design it did not, and could not, fulfil. The tribune might put a stop to particular iniquities, to individual instances of crying hardship; but the fault lay not in the unfair working of a righteous law, but in a law which was itself unrighteous, and how could the tribune regularly obstruct the ordinary course of justice? Could he have done so, it would have served little to remedy the evil, unless the sources of impoverishment were stopped—the perverse taxation, the wretched system of credit, and the pernicious occupation of the domain-lands. But such measures were not attempted, evidently because the wealthy plebeians themselves had no less interest in these abuses than the patricians. So this singular magistracy was instituted, which presented to the commons an obvious and available aid, and yet could not possibly carry out the necessary economic reform. It was no proof of political wisdom, but a wretched compromise between the wealthy aristocracy and the leaderless multitude. It has been affirmed that the tribunate of the people preserved Rome from tyranny. Were it true, it would be of little moment: a change in the form of the state is not in itself an evil for a people; on the contrary, it was a misfortune for the Romans that monarchy was introduced too late, after the physical and mental energies of the nation were exhausted. But the assertion is not even correct; as is shown by the circumstance that the Italian states remained as regularly free from tyrants as the Hellenic states regularly witnessed their emergence. The reason lies simply in the fact that tyranny is everywhere the result of universal suffrage, and that the Italians excluded the burgesses who had no land from their public assemblies longer than the Greeks did: when Rome departed from this course, monarchy did not fail to emerge, and was in fact associated with this very tribunician orifice. That the tribunate had its use, in pointing out legitimate paths of opposition and averting many a wrong, no one will fail to acknowledge; but it is equally evident that, where it did prove useful, it was employed for very different objects from those for which it had been established. The bold experiment of allowing the leaders of the opposition a constitutional veto, and of investing them with power to assert it regardless of the consequences, proved to be an expedient by which the state was politically unhinged; and social evils were prolonged by the application of useless palliatives.